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104 F.

3d 356

NOTICE: THIS SUMMARY ORDER MAY NOT BE CITED


AS PRECEDENTIAL AUTHORITY, BUT MAY BE CALLED
TO THE ATTENTION OF THE COURT IN A SUBSEQUENT
STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY
CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR
RES JUDICATA. SEE SECOND CIRCUIT RULE 0.23.
UNITED STATES OF AMERICA, Appellee,
v.
LUIS CARRIZO, Defendant-Appellant.
No. 96-1334.

United States Court of Appeals, Second Circuit.


Dec. 4, 1996.

Appeal from the United States District Court for the Southern District of
New York (Harold Baer, Jr., Judge).
APPEARING FOR APPELLANT: Philip L. Weinstein, Legal Aid
Society, New York, N.Y.
APPEARING FOR APPELLEE: Jane A. Levine, Asst. U.S. Atty., New
York, N.Y.
S.D.N.Y.
AFFIRMED.
Before NEWMAN, Chief Judge, and OAKES and WINTER, Circuit
Judges.

This cause came on to be heard on the transcript of record from the United
States District Court for the Southern District of New York and was argued by
counsel.
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,

ADJUDGED AND DECREED that the judgment of the District Court is


hereby AFFIRMED.

Luis Carrizo appeals from the May 9, 1996, judgment convicting him, after a
jury trial, of corruptly soliciting or accepting money in connection with loans
from a financial institution in violation of 18 U.S.C. 215(a)(2) (1994). Carrizo
contends that venue on two counts was improperly laid in the Southern District
of New York.

Carrizo was an officer of Banco de la Provincia de Buenos Aires ("BPBA") and


worked at a branch located in Manhattan. BPBA is a participating lender in the
United States Small Business Administration ("SBA") loan program. Under
that program, the SBA guarantees up to 90 percent of the value of loans made
by participating lenders to eligible small businesses.

The indictment charged that Carrizo solicited gratuities from five separate SBA
borrowers. The transactions pertinent to the two counts challenged on appeal
are as follows:

1. The Los Andes Transaction. Edalio Rondon was the owner of Los Andes
Imports, Incorporated ("Los Andes"), a New Jersey company that sold
imported wines. In 1992, Carrizo secured on behalf of Los Andes a $380,000
SBA loan. The loan-closing documents were signed in Manhattan on December
4, 1992, but only $20,000 of the loan was credited to the Los Andes account at
that time.

A few days later, Carrizo visited the Los Andes offices in New Jersey. When
Rondon asked him about the balance of the funds, Carrizo replied that Rondon
would have to give him $10,000 in cash, as a demonstration to the SBA of Los
Andes' good faith on the loan. When Rondon became angry and demanded that
they contact the SBA directly, Carrizo left without the cash.

Rondon never received the balance of the loan proceeds, and later complained
to the SBA that the loan had been misappropropriated. At trial, it was revealed
by the defense that Rondon may have authorized the BPBA to use the loan
proceeds to pay off various debts.

2. The Giampier Transaction. Mario Giampieri was president and part-owner of


Giampier, Ltd. ("Giampier"), a leather goods manufacturer and distributor
located in Denver, Colorado. In 1992, Giampieri, at Carrizo's suggestion and
with Carrizo's help, applied for an SBA loan. The loan was approved in the

amount of $250,000, with closing to take place on December 18, 1992, at


Giampier's headquarters in Colorado.
10

Carrizo was the only BPBA representative to attend the loan closing. The
documents he provided were all post-dated to ten days after the closing date.

11

After the papers were signed, Carrizo told Giampieri that he would have to pay
an extra two percent, or $5,000, in "expenses," additional to those expenses
listed on the loan documents. The two percent was purportedly "for some SBA
people." Carrizo refused Giampieri's offer to pay the expenses by check, and
instead accompanied Giampieri to a bank, where Giampieri cashed a corporate
check and handed the $5,000 over to Carrizo. Giampieri received the loan
proceeds on December 28, 1992.

12

Section 215(a)(2) provides for punishment of any officer, director or employee


of a financial institution who "corruptly solicits or demands ... or corruptly
accepts" money as a reward or influence for a banking transaction. Carrizo
contends that as to the Los Andes and Giampier transactions, the Government's
own proof demonstrated that the acts of soliciting and accepting money
occurred entirely in New Jersey and in Colorado, respectively, and not in New
York City.

13

To evaluate venue, this Court applies a "substantial contacts" rule. That rule
requires the Court to consider a number of factors, including the "site of the
defendant's acts, the elements and nature of the crime, the locus of the effect of
the criminal conduct, and the suitability of each district for accurate
factfinding." United States v. Beech-Nut Nutrition Corp., 871 F.2d 1181, 118889 (2d Cir.1989) (citing United States v. Reed, 773 F.2d 477, 481 (2d
Cir.1985)). The Court considers all acts essential to the defendant's commission
of the crime, but ignores, for the purpose of venue, acts that are merely
preparatory. United States v. Delia, 944 F.2d 1010 (2d Cir.1991).

14

In this case, though the actual words of solicitation were uttered and the
physical act of accepting money was completed outside the Southern District of
New York, Carrizo's verbal solicitations and physical acceptance of cash did not
alone amount to the acts constituting the crime. Rather, the verbal requests and
acceptance of money were intricately bound up with acts committed within the
Southern District of New York.

15

Using his position as an officer in the Manhattan branch of BPBA, Carrizo not
only caused the loan applications to be submitted, but also used the proceeds as

leverage for his corrupt activities. The securing and retention of the proceeds in
New York constituted essential, and not merely preparatory, steps in the
substantive offenses of corrupt solicitation and acceptance of money. See Delia,
944 F.2d at 1014. It is precisely acts committed in these circumstances that the
statute is intended to punish.